George Will: Congress should protect its turf from presidential overstep

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Congressional Republicans’ long-simmering dismay about Barack Obama’s offenses against the separation of powers became acute when events compelled him to agree with them that the Affordable Care Act could not be implemented as written. But even before he decreed alterations of key ACA provisions — delaying enforcement of certain requirements for health insurance and enforcement of employers’ coverage obligations — he had effectively altered congressionally mandated policy by altering work requirements of the 1996 welfare reform; and compliance requirements of the No Child Left Behind education law; and the prosecution of drug crimes entailing mandatory minimum sentences; and the enforcement of immigration laws pertaining to some young people.

Republicans tend to regard Obama’s aggressive assertion of enforcement discretion as idiosyncratic — an anti-constitutional impatience arising from his vanity. This interpretation is encouraged by his many assertions that he “can’t wait” for our system of separated powers to ratify his policy preferences. Still, to understand not only the extravagance of Obama’s exercises of executive discretion, but also how such discretion necessarily grows as government does, read Zachary S. Price’s “Enforcement Discretion and Executive Duty” forthcoming in the Vanderbilt Law Review. Price, a visiting professor at the University of California’s Hastings College of the Law, demonstrates that the Constitution’s “text, history, and normative underpinnings” do not justify the permissive reading Obama gives to the Take Care Clause, which says the president “shall take care that the laws be faithfully executed.”

Congress’ excessive expansion of the number of federal crimes, however, has required husbanding of scarce prosecutorial and judicial resources, which has made enforcement discretion central to the operation of today’s federal criminal justice system. But Obama’s uses of executive discretion pertain to the growth of the administrative state.

The danger, Price says, is that the inevitable non-enforcement of many federal criminal laws will establish “a new constitutional norm of unbounded executive discretion” beyond the criminal justice system. Price says the enforcement discretion exercised in the context of the resource-constrained criminal justice system provides “no support for presidential authority to decline enforcement with respect to any other given civil regulatory regime, such as the Affordable Care Act.”

The difference is between priority-setting and policy-setting, the latter being a congressional prerogative because of Congress’ primacy in lawmaking.

It has, however, become “a nearly irresistible temptation” for presidents to infer permission from the courts’ abandonment of judicial review that limits Congress’ power to delegate essentially legislative powers to the executive branch. So, Price asks: “If President Obama may postpone enforcement of the ACA’s insurance requirements and employer mandate, could a subsequent president ignore the Affordable Care Act altogether?”

In 1998, the Supreme Court held that “there is no provision in the Constitution that authorizes the president to enact, to amend, or to repeal statutes.” But by claiming a power to revise laws through suspension of portions of them, Obama is exercising what Price calls a “second veto.” Actually, he is wielding what the Constitution forbids and no statute can grant — a line-item veto.

The sprawl of the modern administrative state requires vast delegations of powers, often indistinguishable from legislative powers, to an executive branch whose scale defies even adequate congressional oversight. Fortunately, in the Newtonian physics of our constitutional system, wherein rivalries among the three branches are supposed to trend toward equilibrium, actions often produce equal and opposite reactions. Obama’s aggressive assertions of executive discretion are provoking countervailing attention to constitutional proprieties. His departures from the norms proper to the Take Care Clause may yet cause Congress to take better care of its prerogatives.

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"...the president “shall take care that the laws be faithfully executed.”

Obama blatantly disregards existing laws, but to be fair, so did most of our other more recent Presidents. Just not to the massive extent that Obama does.

Obama has no regard for the rule of law, and the Constitution is just an outdated piece of nothing that keeps getting in the way of his socialistic ideals. In his own narcissistic mind, he IS "The Law".

American Heritage Dictionary definition of fascism: "...a system of government that exercises a dictatorship of the extreme right, typically through the merging of state and business leadership, together with belligerent nationalism."

but those who are have said that the power of the executive has been increasing for decades. Should we be concerned about it? Romney would have stepped into that role as well as Obama.

The initial concept of the Constitution is to limit and keep in check the power of the state, and even with the three branches we still see abuse. That abuse is not subject to any particular political ideology. We can level endless damnation to the Judicial, the Executive, and the Legislative. Dirty deeds done dirt cheap everywhere.

That is also why we should be concerned about the biggest protector of democracy and representative republic -- journalism. We have now given "freedom of speech" to the fictional "corporate person," even as our individual freedom to influence government erodes. We find our politicians living in bubbles within bubbles, all financed by many corporate lobbies some of which pay no taxes (1 out of 4). There has to be a pushback to all this and even the precious right of the press to spy on the government.

All of this means our republic is in a crisis, but the debt is not the crux of the matter. The crisis is that democracy is once again on the rocks and plutocrats are playing a game with governments. Really, they are stacking the deck. They intend to win the game. Guess who loses?

These dynamics create dysfunction in the bribery capital of the world. The Capitol is run by capital. Plutocracy (a totalitarian form of government) is on the rise. And that, more than anything, endangers the freedoms and the government the Founders vouchsafed to "we the people."

Our public kingdom divided against itself cannot stand up to these forces. We the people have to get on the same page and understand the underlying problem, not the problems propaganda tells us are foremost. Our commonly-held government has been up for sale. That means the very few will run the show.